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Kotah Transport Ltd. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtRajasthan High Court
Decided On
Case NumberCivil (Special) Appeal No. 6 of 1961
Judge
Reported in[1967]37CompCas288(Raj)
ActsMotor Vehicles Act, 1939; Companies Act, 1956 - Sections 155; Indian Limitation Act, 1908 - Schedule - Article 181; Code of Civil Procedure (CPC) ; Indian Arbitration Act
AppellantKotah Transport Ltd.
RespondentState of Rajasthan
Appellant Advocate M.B.L. Bhargava, Adv.
Respondent Advocate M.M. Vyas, Government Adv.
DispositionAppeal dismissed
Cases ReferredHansraj Gupta v. Dehra Dun
Excerpt:
- industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time employees from the definition of workman. the expression part time has nothing to do with the nature of appointment, but it only regulates the.....dave, c.j.1. this is an appeal by the kotah transport limited, which is a public limited joint stock company, under section 155(4) of the companies act (no. 1 of 1956), which will hereinafter be referred to as the 'act', against the order of the learned company judge of this court dated the 8th august, 1960, passed on an application filed by the state of rajasthan under section 155(1) of the act.2. it is common ground between the parties that the government of his highness the maharao raja of the erstwhile kotah state granted a monopoly to carry passengers and goods by motor transport within the state to messrs. budhsingh bapna, sardar ujagar singh and sardar daljit singh, who will hereinafter be referred to as the 'grantee', by a 'deed of covenant' (exhibit a-1) dated 19th september,.....
Judgment:

Dave, C.J.

1. This is an appeal by the Kotah Transport Limited, which is a public limited joint stock company, under Section 155(4) of the Companies Act (No. 1 of 1956), which will hereinafter be referred to as the 'Act', against the order of the learned company judge of this court dated the 8th August, 1960, passed on an application filed by the State of Rajasthan under Section 155(1) of the Act.

2. It is common ground between the parties that the Government of His Highness the Maharao Raja of the erstwhile Kotah State granted a monopoly to carry passengers and goods by motor transport within the State to Messrs. Budhsingh Bapna, Sardar Ujagar Singh and Sardar Daljit Singh, who will hereinafter be referred to as the 'grantee', by a 'Deed of Covenant' (exhibit A-1) dated 19th September, 1945, for a period of ten years. In pursuance of the terms and conditions of the said document, the grantee floated a joint stock company with a capital of rupees ten lakhs. That company was named as Kotah Transport Limited, Kotah. It was incorporated and registered on 15th January, 1946, under the Indian Companies Act, 1913, as applied to the then Kotah State and the grantee assigned his rights under the grant, exhibit A-1, to this company. Clause 4 of exhibit A-1 provided that:

' The grantee shall allot to His Highness' Government fully paid up shares to the value of one lakh of rupees free of costs. These shares shall, in all respects, including distribution of profits and sharing in the assets in the event of winding up, rank equally with any other shares issued by the grantee.'

3. According to this agreement and in consideration of the concessions and the monopoly which was granted to the company, the company allotted to the Government of Kotah State fully paid up shares of the value of rupees one lakh, free of costs. The State further-purchased shares worth one lakh of rupees on cash payment. Thus, the Kotah State was holding shares of the value of two lakhs of rupees before it merged into the Former United State of Rajasthan on 25th March, 1948. The former United State of Rajasthan in turn merged with the present State of Rajasthan on 7th April, 1949. The State of Rajasthan then wrote to the company to register the shares held by the erstwhile State of Kotah in its name. On 24th November, 1951, the company passed a resolution at its meeting to the effect that:

'the company accepts the claim and devolution of right on the present Government of Rajasthan and is prepared to transfer the shares in the name of the Finance Secretary but there is a clear case of transmission.'

4. Thus, the company agreed to transfer the shares in favour of the petitioner on payment of transmission fees of Rs. 4,050 and this resolution was communicated to the Commissioner, Kotah Division, Kotah, on 4th December, 1951, by its letter, exhibit S-6. At the same time, Shri R.C. Dhariwal, advocate and legal adviser of the company, served upon the petitioner a notice, exhibit A-5, dated 26th November, 1951, saying that shares of the value of rupees one lakh were given to the Kotah State Government free of cost in consideration of the grant of monopoly, that the monopoly had come to an end on account of the promulgation of the Motor Vehicles Act, 1939, that permits were granted to other owners of motor vehicles to ply their buses on the routes on which the company was plying its motor vehicle, that there was thus a breach of contract on the part of the Government of Rajasthan and, therefore, it was requested that the State of Rajasthan should either pay the amount of rupees one lakh, if it wanted to retain the said shares or the said shares of the value of rupees one lakh should be ceased or surrendered and that if this was not done within a period of one month, legal action would be taken against the Government of Rajasthan and it would be liable to all costs incidental thereto.

5. The State of Rajasthan asserted its rights to hold the shares. It also asserted its right of exemption from the payment of transmission fee. Eventually, on 20th October, 1953, the company passed a resolution forfeiting shares of the value of one lakh of rupees which were issued in consideration of the monopoly. As noted above, the State of Rajasthan, therefore, filed on 23rd December, 1959, an application under Section 155(1) of the Act for rectification of the register of members.

6. The said application was contested by the company on three grounds. It was urged that the application was time-barred in view of the provisions. of Article 181 of the Indian Limitation Act (No. IX of 1908). It was nextcontended that the application under Section 155 of the Act was not maintainable, because the validity or otherwise of the forfeiture of shares could not be determined in summary proceedings and complicated questions of fact and law were involved. Lastly, it was urged that the petitioner having committed the breach of contract and the monopoly having been ended before the expiry of ten years, the shares were rightly forfeited.

7. After going through the documents placed before the court by both the parties and hearing them, the learned company judge repelled all the three contentions. It was held that Article 181 of the Indian Limitation Act of 1908 was not applicable to an application under Section 155 of the Act and there was no other provision of law according to which the application could be held to be time-barred. It was further held that the application under Section 155 of the Act was maintainable. Lastly, it was observed that 'even on the allegations of fact made on behalf of the company it was not entitled to forfeit the shares and the forfeiture was void.'

8. The learned company judge, therefore, allowed the petitioner's application and directed the company to register the name of the State of Rajasthan with regard to the disputed shares on payment of the prescribed transmission fee. It is against this order that the present appeal is directed.

9. Learned counsel for the petitioner has raised before us the same points which were put forward before the learned company judge.

10. To begin with the question of limitation, it is urged by the appellant's learned counsel that Article 181 of the Indian Limitation Act of 1908 was a residuary article covering all applications for which no period of limitation was provided elsewhere in the Schedule of the Limitation Act or by Section 48 of the Code of Civil Procedure, 1908, that the ambit of this article was not confined to applications presented under the Code of Civil Procedure only, that its language was very wide in its scope and, at any rate, after the amendments of Articles 158 and 178 there was no room left for the argument that its scope was confined only to petitions under the Code of Civil Procedure.

11. In reply, it is urged on behalf of the petitioner-respondent that the third division of the Schedule which contained various articles prescribing the period of limitation in the Indian Limitation Act of 1908 commenced with Article 158 and the language of all the articles preceding Article 181, except Articles 158 and 178, showed that they dealt with various kinds of applications under the Code of Civil Procedure. In other words, all the articles from 158 to 180 except Articles 158 and 178 were applicable to different kinds of applications under the Code of Civil Procedure. Thus, on the principle of ejusdem generis, Article 181, according to respondent's learned counsel, applied to residuary applications under the Code of Civil Procedure and not to applications under other laws.

12. As regards Articles 158 and 178, it is pointed out that the Second Schedule of the Code of Civil Procedure at one time related to arbitration and these two articles also applied to applications relating to matters contained in the Second Schedule of the Civil Procedure Code. The Arbitration Act of 1940 repealed the Arbitration Act of 1899 and the provisions contained in the Second Schedule of the Code of Civil Procedure and, therefore, Articles 158 and 178 were substituted for the old articles by Act No. X of 1940 and the two amended articles now cover the application under the Arbitration Act of 1940 (1) to set aside an award or to get an award remitted for re-consideration and (2) for the filing of an award in the court respectively.

13. Learned counsel proceeds to argue that the amendments of Articles 158 and 178 thus made no difference to the applicability of Article 181 and that the learned company judge had committed no mistake in holding that it did not cover the application under Section 155 of the Act.

14. We have considered the said arguments of both the parties. It may be pointed out that as early as in 1932, a question arose before their Lordships of the Privy Council in the case of Hansraj Gupta v. Dehra Dun-Mussorie Electric Tramway Co, Ltd., [1933] 3 Comp. Cas. 207, 214 (P.C.) whether an application filed by a liquidator under Section 136 of the Companies Act could be held to be barred by limitation under Article 181 of the Indian Limitation Act of 1908. Adverting to this question, it was observed by their Lordships as follows :

' The application of the liquidators must therefore be treated as an ' application made ' under Section 3 ; and the next inquiry must be whether any period of limitation is ' prescribed therefor by the First Schedule ' to the Indian Limitation Act. It is common ground that the only article in that Schedule which could apply to such an application is Article 181; but a series of authorities commencing with Baimanekbai v. Manekji Kavasji, (1883) I.L.R. 7 Bom. 213 has taken the view that Article 181 only relates to applications under the Code of Civil Procedure, in which case no period of limitation has been prescribed for the application. But even if Article 181 does apply to it, the period of limitation prescribed by that article is three years from the time when the right to apply accrued, which time would be not earlier than the date of the winding up order, 26th March, 1926. The application of the liquidators was made on 26th March, 1928, well within the three years. The result is that from either point of view the application by the liquidators, if otherwise properly made under and within the provisions of Section 186 of the Indian Companies Act, is not one which must be dismissed by reason of Section 3 of the Indian Limitation Act. It is either an application made within time, or it is an application made for which no period of limitation is prescribed.The case may be a casus omissus. If it be so, then it is for others than their Lordships to remedy the defect.'

15. It would appear from the above observation that, although their Lordships considered the question of limitation even after assuming the applicability of Article 181, they did not disapprove the series of authorities commencing with Baimanekbai v. Munekji Kavasji, which had taken the view that Article 181 applied only to those applications under the Code of Civil Procedure for which no period of limitation was prescribed. It should be taken that their Lordships impliedly approved this view because they did not strike a note of dissent.

16. In Shiam Lal J. Dewan v. Official Liquidators of the U.P. Oil Mills Co. Ltd., [1933] 3 Comp. Cas. 365 a Full Bench of the Allahabad High Court considered the question of the applicability of Article 182. It was observed by Sulaiman C.J. that ' Article 181 also applied to other applications under the Code of Civil Procedure, i.e., the application contemplated therein is ejusdem generis with the other applications which are specially specified. '

17. Learned counsel for the appellant has referred to Shah and Co. v. Ishar Singh Kirpal Singh and Co., A.I.R. 1954 Cal. 164 and pointed out that in that case Article 181 was held applicable to an application under Section 33 of the Indian Arbitration Act and that this supported his view to the effect that its applicability was not confined only to applications under the Code of Civil Procedure.

18. It is true that in the said case it was observed by the learned judge that in view of the amendments made in Articles 158 and 178 of the Indian Limitation Act, it could no longer be said that, applying the doctrine of ejusdem generis, the residuary article must be held to apply only to applications under the Code of Civil Procedure, but it is noteworthy that the learned judge was considering the applicability of the residuary Article 181 to those applications only which were made under the Indian Arbitration Act and which were not specifically covered by Articles 158 and 178 of the Indian Limitation Act. This was because his attention was drawn to Sections 37 and 41 of the Indian Arbitration Act.

19. Section 37 provides that all the provisions of the Indian Limitation Act of 1908 shall apply to arbitrations as they apply to proceedings in court. Section 41 further provides that, subject to the provisions of that Act and all the rules made thereunder, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the court and to all appeals under the Act. It was on the basis of these sections that it was contended that the provisions of Article 181 of the Indian Limitation Act of 1908 should be applied.

20. It may be noted here that before the enactment of the Arbitration Act (No. X of 1940), the law of arbitration in what was known as British India was substantially contained in two enactments, namely, the Indian Arbitration Act of 1899 and the Second Schedule to the Code of Civil Procedure of 1908. The operation of the Indian Arbitration Act of 1899 was limited to presidency towns and to such other areas to which it might be extended. In fact, it was the Second Schedule to the Code of Civil Procedure which dealt with the applications which were outside the operation and scope of the Arbitration Act of 1899.

21. When the Indian Arbitration Act No. X of 1940 came into force, Articles 158 and 178 were naturally substituted for the original articles in order to provide limitation for certain applications to be made under the Arbitration Act of 1940. It was on account of this historical background that it was held in the above case by the learned judge that the application of Article 181 of the Indian Limitation Act could be extended to other applications, for instance, applications made under Section 33 of the Indian Arbitration Act to which Article 158 or 178 did not apply in terms.

22. It is interesting to point out here that in Kalinath Chatterjee v. Nagendra Nath Chatterjee, A.I.R. 1959 Cal 81, 82 a question arose before the same learned judge (who decided Shah & Co.'s case referred to above) whether Article 181 could apply to an application for probate and it was observed by him as follows;

' On the question as to whether or not an application for probate comes within Article 181 of the Indian Limitation Act, there is a large body of decisions which have taken the view that Article 181 of the Indian Limitation Act is confined to applications under the Code of Civil Procedure. Two of these decisions, namely, In the matter of Ishan Chunder Roy, (1881) I.L.R. 6 Cal, 707 and Baimanekbai v. Manekji Kavasji relate to application for probate. It was held in those cases that Article 181 of the Limitation Act is confined to applications under the Code of Civil Procedure, and does not apply to an application for probate. The main reason for those decisions was that on examination of the articles in the First Schedule in the Limitation Act it appeared that in every one of them the application was made under the Code of Civil Procedure and applying the doctrine of ejusdem generis the application which is contemplated in Article 181 of the Limitation Act must be confined to the same type of applications which are contemplated in the other articles in the Schedule, that is to say, applications under the Code of Civil Procedure. Mr. Sen Gupta contended before us that although this was the position before the Limitation Act came to be amended in 1940, whereby Articles 158 and 178 of the Indian Limitation Act were made applicable to certain proceedings under the Arbitration Act, after the said amendment the basis of thosedecisions no longer exists. In other words, his contention was that, after the said amendment, it can no longer be said that the doctrine of ejusdem generis would apply to the residuary article, that is, Article 181 of the Limitation Act, or that applying the said doctrine, Article 181 must be held to apply only to applications under the Code of Civil Procedure. The position according to him has undergone a change and the First Schedule no longer contains merely applications under the Code of Civil Procedure but now includes applications under the Indian Arbitration Act as well.'

23. It was argued before the learned judge that on the reasoning which he had adopted in Shah & Co.'s case an application for probate came within the ambit of Article 181, but the learned judge held that in view of the observations of the Lordships of the Supreme Court in Sha Mulchand & Co. Ltd. v. Jawahar Mills Ltd., [1953] 23 Comp. Cas. 1, 15, 16 (S.C.) that contention could no longer prevail and it was held by him that Article 181 did not apply to an application for probate.

24. Learned counsel for the appellant has also referred to us Mst. Anguri Devi v. Balram Ganpatrai, A.I.R. 1960 Punj. 204 and Union of India v. Wazir Chand., A.I.R. 1962 Him. Prad. 24. About these cases it would suffice to say that both of them relate to matters under the Arbitration Act. In the former case, an arbitration award was made in March, 1948, and the award itself stated that it was announced to the parties on the date it was made. The arbitrator, however, did not give any notice in writing of the making of the award under Section 14(1) of the Arbitration Act. On 11th July, 1953, an application under Section 14(2) of the Arbitration Act was made by a party for filing of the award and for issue of a notice to the parties with regard to it. The question was whether the application was within time. It was held that the application under Section 14(2) of the Arbitration Act was governed by Article 181 of the Limitation Act. It is obvious that this case is not helpful to the appellant, because the said observation was made in an application under Section 14(2) of the Arbitration Act.

25. The same view was followed in the next case and it was held that Article 181 governed those applications under the Arbitration Act to which Articles 158 and 178 were not applied.

26. Learned counsel has not been able to refer to any case in which it might have been held that Article 181 would apply to applications made under any law other than the Code of Civil Procedure or the Indian Arbitration Act. On the other hand, it may be pointed out that in Sha Mulchand & Co. Ltd. v. Jawahar Mills Ltd. referred to above, it was observed by their Lordships of the Supreme Court as follows :

'A claim for the rectification of the register simpliciter does not necessarily involve a claim for the return of the share scrips and in this case there was, in fact, no prayer for the return of shares or the scrips and, therefore, these two Articles (48 & 49, Indian Limitation Act) can have no application. Learned advocate, however, strongly relies on Article 181 of the Limitation Act. That article has, in a long series of decisions of most, if not all, of the High Courts, been held to govern only applications under the Code of Civil Procedure. It may be that there may be divergence of opinion even within the same High Court but the preponderating view undoubtedly is that the article applies only to applications under the Code.'

27. Their Lordships then quoted with approval the observations of the Judicial Committee in Hansraj Gupta v. Dehra Dun-Mussorie Electric Tramway Co. Ltd., [1933] 3 Comp. Cas. 207 (P.C.) which have already been reproduced above. It was argued before their Lordships that the reason for holding that Article 181 was related only to applications under the Code of Civil Procedure did not hold good because of the amendment of Articles 158 and 178 of the Indian Limitation Act. Some cases of the Calcutta High Court were also cited before their Lordships. After considering those cases, it was observed as below :

' It does not appear to us quite convincing, without further argument, that the mere amendment of Articles 158 and 178 can 'ipso facto' alter the meaning which, as a result of a long series of judicial decisions of the different High Courts in India, came to be attached to the language used in Article 181. This long catena of decisions may well be said to have, as it were, added the words 'under the Code' in the first column of that article. If those words had actually been used in that column then a subsequent amendment of Articles 158 and 178 certainly would not have affected the meaning of that article. If, however, as a result of judicial construction, those words have come to be read into the first column as if those words actually occurred therein, we are not of opinion, as at present advised, that the subsequent amendment of Articles 158 and 178 must necessarily and automatically have the effect of altering the long acquired meaning of Article 181 on the sole and simple ground that after the amendment the reason on which the old construction was founded is no longer available.'

28. In our opinion, the above observation of their Lordships should have ordinarily clinched the issue, but it is argued on behalf of the appellant that their Lordships should not be taken to have expressed a firm opinion about the interpretation of Article 181 because immediately after the said observation, it was remarked by their Lordships that they need not pursue the matter further, since the application, which their Lordships were considering, was found within time even if Article 181 applied to it. It is true that their Lordships proceeded to discuss after making the said observation that Article 181 did not apply to the application before them even if its application was attracted. Learned counsel, therefore, cannot be said to be wrong when he says that the matter was left open. He has, however, not been able to advance before us any new argument which might persuade us to take a view different from the one contained in the said observation. It may be added that when the legislature amended Articles 158 and 178, it should be presumed that it was aware of the view which was taken about the interpretation of Article 181 by a series of decisions to the effect that its applicability was confined only to applications under the Code of Civil Procedure. Yet, no amendment was made in that article. It was in the Indian Limitation Act No. 38 of 1963 that its corresponding Article 137 has been amended and placed in a separate Part No. II all alone. The Limitation Act of 1963, however, cannot be applied retrospectively. Since no such change was made in the Limitation Act by the time the present application under Section 155 of the Act was presented, we consider it safe to follow the meaning which was given to it by their Lordships of the Supreme Court as pointed out above. There is thus no force in this contention.

29. Now coming to the next objection about the maintainability of the application under Section 155 of the Act, it is urged by the appellant's learned counsel that important questions of fact and law were involved in the present case and the learned judge ought not to have proceeded under Section 155 of the Act and should have directed the petitioner-respondent to file a regular suit.

30. We have given our anxious consideration to this objection and we find that there is no substance therein. As already pointed out above, there was no dispute between the parties on all important and relevant facts. It was admitted by the appellant in his reply filed before the learned company judge on nth April, 1960, that 300 preference shares of rupees one hundred each, 6,000 ordinary shares of rupees ten each and 2,000 deferred shares of rupees five each, that is, shares of the value of rupees one lakh, were allotted free of cost as fully paid up shares to the Government of His Highness the Maharao Raja Sahib of the erstwhile Kotah State in consideration of its having given to the company a sole monopoly of transport in the State and other concessions.

31. It was also admitted that, in addition to the above shares, the erstwhile Kotah State Government was allowed shares of the value of rupees one lakh which were purchased for cash. It was also not denied that the petitioner-respondent was a successor of the Kotah State Government. On the contrary, this position was admitted in the following paragraph, which contains the appellant's main contention :

'As regards the shares allotted to the Kotah State Government withoutcash payment and in lieu of monopoly licence as the applicant being thesuccessor Government committed breach of conditions of the grant fromApril 1, 1950, a notice was served on the Government of Rajasthan on behalf of the opposite party on November 26, 1951. When the Government failed either to surrender the aforesaid shares or to pay the nominal value of the shares, i.e., one lakh of rupees, the board of directors in their meeting dated October 20, 1953, decided to forfeit the shares of one lakh of rupees held by the Government of Kotah free of cost in lieu of monopoly granted by them to the company.'

32. Thus, the only question for determination before the learned company judge was, whether the appellant possessed the requisite authority to forfeit the shares of the respondent and whether the name of the shareholder which was entered in the register could be struck off by the appellant, or whether the petitioner's application for rectification of the register of members was correct. In our opinion, it cannot be denied that the court did possess the power to order rectification of the register of members under Section 155 of the Act and the learned company judge did not exceed his jurisdiction in entertaining and deciding the application under the said section.

33. We may now take up the last contention of the appellant's learned counsel to the effect that the decision of the learned company judge regarding the fact that the company had no authority or jurisdiction to forfeit the shares is erroneous and palpably wrong. In this connection, it is firstly urged that the learned judge failed to appreciate the scope and ambit of Articles 29 and 34(A) of the articles of association of the company. Those articles are as follows :

'Article 29.--If any member fails to pay any call or instalment on or before the day appointed for the payment of the same, the directors may at any time thereafter, during such time as the call or instalment remains unpaid, serve a notice on such member requiring him to pay the same, together with any interest that may have accrued and all expenses that have been incurred by the company by reason of such non-payment.

Article 34(A).--The provisions of these articles as to forfeiture shall apply in the case of non-payment of any sum which, by the terms of the issue of a share, becomes payable at a fixed time, whether on account of the amount of the share, or by way of premium, as if the same had been payable by virtue of a call duly made and notified.'

34. A bare perusal of Articles 29 would show that it can come into play only in a case where any member fails to pay any call or instalment on or before the date appointed for the payment of the same. So, it was only in the case of the member's failure to pay the call or instalment on or before the appointed date for payment that the directors were authorised to issue a notice requiring such member to pay the same, together with interest.

35. Similarly, it is clear from the language of Article 34(A) that the provision regarding forfeiture could apply in the case of non-payment of any sum which by the terms of the issue of the share became payable at a fixed time.

36. In the case of the petitioner-respondent, these two articles were wholly inapplicable in respect of the shares which were allotted in consideration of the grant of monopoly. A perusal of the deed of covenant (exhibit A-1) would show that in the first clause thereof it was provided that the period of monopoly shall be ten years computed from the first day of January, 1946, and the grantee undertook to commence operating the services at the latest by that date.

37. In clause 4, it was provided that the grantee shall allot to His Highness' Government fully paid up shares to the value of rupees one lakh free of cost. It was further mentioned that these shares shall, in all respects including distribution of profits and sharing in the assets in the event of winding up, rank equally with any other shares issued by the grantee. It is clear from the language of this clause that it was never in the contemplation of the parties to the covenant that the grantor would ever be required to pay any call or instalment in respect of these shares. On the other hand, it was clearly understood that these shares would, in all respects, rank equally with any other shares issued by the grantee and the grantor would be entitled to the distribution of profits and to share in the assets even in the event of the winding up of the company. On the contrary, we may reproduce here Clause 18 which runs as follows :

' Clause 18.--The grantee agrees to the reservation by the grantor to themselves the rights to terminate the licence and monopoly covered by the grant subject to the following conditions :--

(a) In the event of terminating the grant, at least six months' notice shall be given.

(b) On such termination the grantor shall be under an obligation to take over the assets including bona fide stock-in-trade of the grantee for consideration to be mutually agreed upon. In the event of difference of opinion the valuation of such assets shall be made by arbitrator appointed by the grantor of whom at least one shall be a judicial officer not below the rank of a district judge. To such valuation 10% thereof shall be added as compulsory acquisition. The arbitrators may be aided by two assessors one to be appointed by the grantor and another by the grantee. The award of the arbitrators shall be binding on both the parties and shall be considered to be an award under the Kotah State Arbitration Act, 1945.'

38. It is obvious from a perusal of the said clause that the grantor reserved to itself the right to terminate the licence and monopoly covered by the grant and the grantee agreed to the reservation of that right on conditions (a) and (b). According to condition (a) the grant could be terminated after giving minimum six months' notice and according to (b) if, on the termination of the grant, there was any difference of opinion about the valuation of the assets, it was to be resolved by arbitration. Clause 19 further provided that if the grantee made a breach of the conditions or covenants, the grant would beliable to be cancelled by the grantor and in the event of such cancellation, the grantor would have the option to take over all or such of the assets or stock-in-trade as it may consider fit at a price to be mutually agreed. In the event of any difference of opinion as to the price, it was to be determined in accordance with the foregoing clause. Lastly, it was provided in Clause 20 that in the event of any doubt or dispute as to the meaning or interpretation of or compliance with the terms of the grant or any point arising thereunder, the dispute shall be referred to the decision by a judicial officer appointed by the grantor not below the rank of the district judge and his decision shall be final and binding on both the parties in the same manner as if it were an award within the meaning of the Kotah State Arbitration Act. Thus, even if there was any doubt or dispute as to the meaning or interpretation of the terms of the grant, the proper course for the appellant was to make a request for arbitration. The appellant could not take the law into his own hand and forfeit the respondents' share. As noted above, the period of monopoly was to commence from 1st January, 1946, and the monopoly was not touched on the appellant's own showing up to 1st March, 1951, that is, for a period of more than six years. If the appellant's monopoly could not continue thereafter on account of the Motor Vehicles Act, 1939, coming into force and the permits being issued to other bus operators, it was because the contract was frustrated on account of the operation of law. We are not called upon to express any opinion in this appeal whether the appellant was entitled to receive any kind of compensation or reimbursement of loss, if any, from the respondent, because no such case was set up before the learned company judge. At any rate, the remedy for the appellant lay elsewhere and it had no authority to forfeit the shares. Learned counsel has not been able to refer to any provision of law or to any clause in the agreement whereby such an authority could be exercised by the appellant.

39. It was also faintly urged on behalf of the appellant that the shares were allotted to the Government of the erstwhile Kotah State and the respondent could not file the application under Section 155 of the Companies Act. There is no force in this contention, because, according to Articles 295 of the Constitution of India, all the rights of that State had devolved upon the respondent. We have already pointed out above that in its resolution dated 24th November, 1951, the company had accepted the position that the title in the shares had devolved on the present Government of Rajasthan. This argument was thus raised only for the sake of adding one more contention. It is devoid of any force and is fit to be dismissed.

40. The result is that none of the arguments advanced by the appellant has been found to be tenable.

41. There is thus no force in this appeal and it is hereby dismissed with costs.


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